You have done it! You have made the long journey on an international flight and you now have your surrogate baby in your arms. Life is perfect, your family is complete. You and your partner are parents, either for the first time or again and you are both smiling from ear to ear.
However, have you thought about the possible legal implications of being able to bring your baby home? Are you confident that you are now the legal parents to your child, and if you are not, do you know the procedure to become your baby’s legal parents?
This should be a fundamental issue for consideration for all new parents of surrogate children, but unfortunately many new parents are failing to register themselves as their surrogate baby’s legal parents, which can mean that they have no rights and responsibilities to their own child. This in turn can lead to difficulties surrounding your child’s future welfare issues, for example, your child’s hospital may not approve your consent for your child to have an operation. A failure to legally register your parentage to your child could also be a particular issue if you subsequently divorce.
Of course, many of us do not want to consider the scenario of what would happen if it all goes wrong. However you should seriously consider the legal situation as soon as possible. This is because where any child which is to be brought into the UK, is born as the result of a surrogacy arrangement, the child will be subject to UK law.
No matter what the genetic make-up of the child, the UK law sees the woman who carries and bears the child as the legal mother. If she is married at the time of her artificial insemination or the implantation of an embryo, the UK law will see her husband as the legal father, unless it is shown that he did not consent to the implantation of the embryo or the artificial insemination. This presumption may be rebutted by evidence that the commissioning man is the genetic father.
As the surrogate mother is recognised as the legal mother, The Human Fertilisation and Embryology Act 1990 (HFE Act 1990) provides a procedure by which the commissioning couple can acquire parental rights. The surrogate mother and the “legal” father must give full and free consent for the parental order. Such consent is not effective until the child is at least six weeks old, and exists to ensure that the surrogate mother is absolutely certain that she has made the correct decision.
Where a surrogate mother is a foreign national residing abroad, even if her home country sees the commissioning couple as the “parents” and issues documentation to this effect, UK law and the Immigration Rules will not view them as “parents”. Only where the surrogate mother is single, is there a chance that the sperm donor/commissioning male will classified as the legal “father”.
For the above reasons it is imperative that you make the necessary legal arrangements to bring your child home following six weeks of birth. It goes without saying that we hope each family will have a positive experience of surrogacy, which is free from difficulty. However for many families, the search for their surrogate has been long and stressful and whilst waiting for the 9 months of pregnancy to elapse, it has been tiresome and this is even before they realise their dream of parenthood. It would of course be devastating for any parent if they have not taken the right legal steps or have faced difficulties in being able to bring their baby back home to the UK.
Here at Pinder Reaux & Associates we can assist you with your Parental Orders to ensure that you are provided the requisite legal rights to your child. For those families who need to send official legal documentation onto other foreign countries, we provide a notary service by which the foreign jurisdiction will accept the UK legal paperwork.
If you have identified your surrogate or you are embarking on your investigative journey into the world of surrogacy and would like to discuss the matter in detail with one of our specialist family lawyers, please do not hesitate to contact us on 0208 252 7373. Surrogacy is an important step of your life; let us guide you through the legal steps and provide you with the support and confidence you require.
